Is Apple’s ‘app store’ trademark generic, like ‘zipper’?

Microsoft argues no, even though Apple has filed for a trademark on the term. “App store” is a generic term and is “therefore in the public domain and free for all competitors to use,” the company argued Monday in a filing with the U.S. Trademark Trial and Appeal Board.

“Apple was an early and successful entrant into the app store marketplace,” Microsoft’s lawyers wrote (PDF). “Competitors are rushing to develop smartphone products to compete with Apple’s iPhone, and with those products to offer their own app stores. Any secondary meaning or fame Apple has in ‘app store’ is de facto secondary meaning that cannot convert the generic term ‘app store’ into a protectable trademark. Apple cannot block competitors from using a generic name.”

This is why Microsoft and Google have been using the terms “market” and “marketplace” for their app depositories. Microsoft argues “app store” has become genericized, even though Apple filed for the trademark in July 2008 — three months before Google released Android. Who else was saying “app store” back then?

“Zipper” was once a trademarked brand name of B.F. Goodrich.

Trademark protection, however, dies out when those terms become generic. Dumpster used to be a protected term, trademarked by Dempster Systems in the 1960s. How about “escalator,” which was first trademarked by the Otis Elevator Co. to describe “moving stairways.” Believe it or not, “zipper” was once a protected brand name of B.F. Goodrich.

But shouldn’t it take a while — more than three years, certainly — for a trademark to become generic? Don’t such terms need time to become ingrained in the public psyche?

One could argue — and Microsoft has — that it didn’t take long for “app store” to become generic. I mean, how many Android users tell their friends they downloaded an app from the “Android Market” or the “Verizon Android Applications Channel”? Certainly, most say “app store.”

“App store” may also just be generic in nature. In its trademark objection, Microsoft likens “app store” to such terms as “The Computer Store” or “Log Cabin Homes.” These terms, which were previously in line for trademark status, were found to be too generic for protection.